Sierra Club v. Chevron U.S.A., Inc.

Decision Date29 December 1987
Docket NumberNos. 86-6287,86-6288,s. 86-6287
Citation834 F.2d 1517
CourtU.S. Court of Appeals — Ninth Circuit
Parties, 56 USLW 2397, 18 Envtl. L. Rep. 20,237 SIERRA CLUB, a California non-profit corporation, Plaintiff/Appellant/Cross- Appellee, v. CHEVRON U.S.A., INC., a California corporation, Defendant/Appellee/Cross- Appellant.

Deborah S. Reames and Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., for Sierra Club, for plaintiff/appellant/cross-appellee.

Sarah G. Flanagan, San Francisco, Cal., for Chevron, U.S.A., Inc., for defendant/appellee/cross-appellant.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, PREGERSON and REINHARDT, Circuit Judges.

PREGERSON, Circuit Judge:

The Sierra Club filed a citizen enforcement action against Chevron U.S.A. Inc. ("Chevron") alleging that Chevron's El Segundo, California refinery repeatedly violated the terms of its National Pollutant Discharge Elimination System ("NPDES") permit. Chevron filed a motion for summary judgment, contending that some of Sierra Club's claims were barred by California's three-year statute of limitations and that the entire action was precluded because the state Regional Water Quality Control Board ("the Regional Board") had already taken enforcement action against Chevron. The district court granted summary judgment for Chevron on the statute of limitations issue, holding that the California three-year statute of limitations applied. Sierra Club appeals from this ruling. The district court denied summary judgment on the issue of the Regional Board's prior enforcement action, holding that the Regional Board's action against Chevron did not preclude Sierra Club's citizen enforcement suit. Chevron cross-appeals from this ruling. We affirm in part and reverse in part.

BACKGROUND
I. Statutory Framework

The objective of the Clean Water Act (also known as the "Federal Water Pollution Control Act"), 33 U.S.C.A. Secs. 1251-1376 (West 1986 & Supp.1987), is "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." Id. Sec. 1251(a). The Clean Water Act, as amended in 1972, provides that in order to achieve this objective, "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." Id. The Clean Water Act prohibits the discharge of all pollutants except as authorized by the Environmental Protection Agency ("EPA"). Id. Sec. 1311(a).

The Clean Water Act requires that the EPA promulgate "effluent limitation" standards 1 for numerous categories of industrial polluters. Under the National Pollutant Discharge Elimination System, the EPA issues permits to individual dischargers. The permits make the generally applicable effluent limitations and other water quality standards the individual obligation of the discharger. 33 U.S.C. Sec. 1342. The Clean Water Act provides that each discharger holding a NPDES permit shall monitor and report on its compliance with its permit. Each discharger must install, use, and maintain monitoring equipment and must sample its effluents. 33 U.S.C. Sec. 1318(a)(4)(A). The discharger must report the results of its self-monitoring to the EPA and the state agency that issues the permit.

In accordance with the Clean Water Act's policy "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution," 33 U.S.C. Sec. 1251(b), certain states are authorized to issue NPDES permits to discharging entities within the state. 33 U.S.C. Secs. 1251(b), 1342(b). Under the Clean Water Act, the EPA Administrator is principally responsible for enforcing permits, whether issued by the EPA or by a state agency. 33 U.S.C. Sec. 1319. While each state agency that issues permits is required to enforce them, the EPA Administrator must take independent enforcement action in the event that the state fails to fulfill its enforcement responsibility. Id.

The Clean Water Act also provides for citizen enforcement suits. 33 U.S.C. Sec. 1365. A citizen may bring an action against any person who is alleged to be in violation of an effluent standard or limitation or an order issued by the EPA or a state agency. 33 U.S.C. Sec. 1365(a). A citizen may also bring an action against the Administrator for the Administrator's failure to perform nondiscretionary functions. Section 1365(b)(1) provides that a citizen suit may not be brought against an alleged violator

(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the [EPA] Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the [EPA] Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

California maintains an NPDES permit program that has been approved by the EPA Administrator. Chapter 5.5 of the Porter-Cologne Water Quality Control Act, Cal. Water Code Sec. 13370 et seq., is the legislation the California legislature passed to implement and enforce the state NPDES program.

II. Facts

Chevron's El Segundo facility discharges wastewater into Santa Monica Bay. The facility's NPDES permit, first issued in 1977, sets out the amounts of various pollutants that the facility may discharge. Chevron has had chronic difficulty in adhering to the terms of the permit. Its self-monitoring reports indicate that it has repeatedly discharged effluents containing impermissible levels of oil and grease; phenols impermissible pH levels for acidity; inappropriate temperature ranges; materials creating an undue biological oxygen demand; high levels of total suspended solids; and ammonia and other harmful substances.

In May 1980, in the face of Chevron's failure to comply with the permit's terms, the Regional Board held a public hearing and issued an enforcement order that required refinements in the facility's water treatment system. Notwithstanding its obedience to this order, Chevron continued to exceed the permit limitations.

On September 11, 1984, the Sierra Club sent a letter to Chevron, the Administrator of the EPA, the Regional Board, and the California State Water Resources Control Board ("the State Board") stating its intent to file a citizen enforcement suit based on the refinery's violations of its NPDES permit. On November 19, 1984, the Regional Board held a public hearing to determine what enforcement action to take against the refinery. Sierra Club did not participate in the hearing. At the end of the hearing, the Regional Board adopted an order requiring Chevron to cease and desist from violating its permit and to build a new effluent diversion facility.

On December 17, 1984, Chevron petitioned the State Board to modify the cease and desist order insofar as the order required compliance with the permit's terms before the completion of the effluent diversion facility. Sierra Club opposed Chevron's petition for review. The State Board denied the petition on September 19, 1985. The Regional Board assessed the facility $58,000 in fines for six permit violations that occurred in 1985.

On March 19, 1985, Sierra Club filed a complaint in its citizen enforcement suit. In the complaint, Sierra Club alleged violations of the refinery's NPDES permit dating from July 1977 to the date of the filing of the complaint. On May 6, 1985, Chevron filed alternative motions for summary judgment and for dismissal. Chevron argued that summary judgment was appropriate on all claims because the Regional Board's action against Chevron barred a citizen enforcement suit under 33 U.S.C. Sec. 1365(b)(1)(B). Chevron argued in the alternative that partial summary judgment was in order on all claims that related to violations occurring before March 19, 1982, because California's three-year statute of limitations barred these claims.

The district court granted partial judgment for Chevron on the statute of limitations issue, but denied Chevron's summary judgment motion based on the Regional Board's action against Chevron.

On April 8, 1986, the district court certified the statute of limitations and Regional Board enforcement issues as appropriate for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b).

DISCUSSION
I. Statute of Limitations

We review de novo district court orders granting summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986) (citing Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983)); Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

A. Applicable Statute of Limitations

The parties disagree about which statute of limitations governs citizen enforcement actions under the Clean Water Act. The district court had three options in addressing the statute of limitations problem. First, it could have concluded that no statute of limitations applied. Second, it could have applied the federal five-year statute of limitations set out at 28 U.S.C. Sec. 2462. Third, it could have applied California's three-year statute of limitations set out at Cal.Code Civ.Proc. Sec. 338(9). The district court took the third option, granting summary judgment for Chevron on Sierra Club's claims relating to violations that fell outside of the three-year California statute of limitations period. The court stated:

Plaintiff contends the appropriate period of limitations for citizen actions under the Clean Water Act, which is silent on the issue, is the five year period prescribed by 28 U.S.C. Sec. 2462. The court is bound, however, to apply the most analogous state statute. Ward v. Caulk, 650 F.2d 1144 (9th Cir.1981). In this case that statute is the...

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